By ZIA AKHTAR*
If Scotland votes for independence in its next referendum and exits the UK by revoking the Act of Union 1707, what will be its status in international law, and will it have to apply to reintegrate as a sovereign state in the EU? The Scottish legal tradition follows a separate stream of law from England and there is an inheritance from the Civil law tradition. The present dispensation is that the British Parliament is supreme and it has reserved powers over the devolved Scottish legislature under the Scotland Act 1998. The legal sovereignty of the Westminster Parliament is overriding and it can invalidate any law enacted by the Holroyd Parliament. This paper is concerned with the Scottish public law doctrines and how they will facilitate its sovereign status and how its legal status in international law will compare with Catalonia which, after its unilateral declaration of independence, attempted to secede from Spain before it was invalidated by the Spanish Supreme Court.
B. Scottish Devolution and Public Law
C. Roman Influence on Domestic Jurisprudence
D. Application of EU laws Post-Brexit
E. Scotland’s Referendum and Catalonia’s UDI
The United Kingdom (UK) became a Union in 1801 which included England, Scotland, and Ireland. The legal sovereignty of the Westminster Parliament has been granted sovereign powers by the Act of Union 1707. The devolution process in Scotland on 1998 under the Sewel Convention gave the country a separate assembly. In recent times the issues that have come before the courts concern legal sovereignty, prerogative powers, devolution, and a potential referendum for Scottish independence. The scope of the European Union (EU) laws in Scotland has also come up for debate and the legal framework of the future of Scotland within the EU if it voted for independence needs to be compared with Catalonia.
The Scottish (Holyrood) Parliament in Edinburgh is deemed to have the competency to enact laws in unreserved matters unless matters are expressly derogated to the Westminster Parliament’s reserved matters under Schedule 5 of the Scotland Act 1998. This provision lists both General Reservations as well as Specific Reservations in the enabling statute that was inaugurated under the Sewel Convention 1998. The provisions also include laws relating to a referendum in Scotland under special powers devolving competence under the Scotland Act 1998 (Modification of Sch. 5) Order 2013 (SI 242), granted by the UK Parliament. The reserved matters such as defence, foreign affairs, and public service.
The non-reserved powers include fiscal and economic policy, public expenditure and regulation of the Bank of England, immigration and asylum laws, drugs laws, data protection laws, and competition rules. The powers that have been granted can revert back to the Westminster Parliament if it decides to abrogate them under the doctrine of Parliamentary sovereignty. The reversed powers can be overridden if Scottish independence becomes a fact after the next referendum which may lead to a repeal of the Act of Settlement of 1707. However, these are under threat from the Internal Market Bill that intends to override them and the Scottish response has to be considered which wants to retain them with those laws that are in harmony with EU laws.
This paper has the following road map. Part 1 considers the Sewel Convention and the legal ramifications of Westminster conveying devolution to the Holroyd Parliament and impact on the judicial review powers; Part 2 will examine the Scottish jurisprudence which is distinct and has borrowed from the European civil law tradition; Part 3 will examine the application of EU laws post-Brexit in Scotland, and Part 4 distinguishes the Catalonian case where the assembly opted for severance from Spain in terms of their varied claim to be sovereign members in the EU. It summarises its arguments by defining the Treaty of Union as an international treaty which after the referendum result that favours independence in Scotland will have the legal effect of severance from the UK if the Scottish Parliament chose to exercise its original powers.
B. Scottish Devolution and Public Law
The UK government can either expressly or impliedly do that which is authorised by statute or the prerogative. In accepting that it is authorized to act in these circumstances when the legality of its actions is challenged in the courts the judges should not consider whether there is the authority in statute or the prerogative for the government action, but rather whether there is any common law or statute preventing the government from acting according to its intentions. It is established that “the continued oversight of Parliament, the members of which are directly accountable in more than one manner, is of fundamental moral importance.”
However, the exercise of judicial review has traditionally been the preserve of the courts exercising their inherent jurisdiction. In Scotland, unlike England and Wales, the judicial review is not limited to merit-based claims or cases which have an element of public law and are part of supervisory jurisdiction. In West v. Secretary of State for Scotland the scope of judicial review as defined by Lord President Hope as follows:
“1. The Court of Session has power, in the exercise of its supervisory jurisdiction, to regulate the process by which decisions are taken by any person or body to whom a jurisdiction, power or authority has been delegated or entrusted by statute, agreement or any other instrument. 2. The sole purpose for which the supervisory jurisdiction may be exercised is to ensure that the person or body does not exceed or abuse that jurisdiction, power or authority or fail to do what the jurisdiction, power or authority requires. 3. The competency of the application does not depend upon any distinction between public law and private law, nor is it confined to those cases which English law has accepted as amenable to judicial review, nor is it correct in regard to issues about competency to describe judicial review under Rule of Court 260B as a public law remedy.
His Lordship defined the scope of review by stating “(b) The word “jurisdiction” best describes the nature of the power, duty or authority committed to the person or body which is amenable to the supervisory jurisdiction of the court. It is used here as meaning simply “power to decide”, and it can be applied to the acts or decisions of any administrative bodies and persons with similar functions as well as to those of inferior tribunals. (c) There is no substantial difference between English law and Scots law as to the grounds on which the process of decision-making may be open to review. So reference may be made to English cases in order to determine whether there has been an excess or abuse of the jurisdiction, power or authority or a failure to do what it requires.”
In Moohan v Lord Advocate there was a challenge to the legality of the Scottish Independence Referendum (Franchise) Act 2013, an Act of the Scottish Parliament, which prohibited prisoners from voting in the referendum. The Act’s legality was in contention on the grounds including its compatibility with Article 3, Protocol 1 ECHR and with the accepted right to vote recognised in the common law. The Supreme Court’s analysis focuses on the European Convention of Human Rights. It decided by a 5-2 majority that although it is established that the ECHR, as interpreted by the Strasbourg Court, prohibits an absolute ban on voting by prisoners, this is relevant to participation in elections and not of application to referendums.
Lord Hodge in a unanimous ruling stated :
“I do not exclude the possibility that in the very unlikely event that a parliamentary majority abusively sought to entrench its power by a curtailment of the franchise or similar device, the common law, informed by principles of democracy and the rule of law and international norms, would be able to declare such legislation unlawful.”
Lord Wilson extrapolated on the ECHR principles and the Court’s ability to assimilate its reasoning and where there is “no directly relevant decision of the ECtHR with which it would be possible (even if appropriate)” to “determine the existence of an alleged Convention right” and in that process take into consideration its present jurisprudence and augment it “as might, whether as currently expressed or as subject to the natural development apt to a living instrument
The exercise of the Monarch’s prerogative could be challenged in the courts in Scotland even for acts that happened outside Scotland. This is because in Scots law it has always been possible to obtain discovery against the Crown even prior to the enactment of the Crown Proceedings Act 1947 when there has a breach of contract where a citizen can “start an action a matter of right rather than grace.” This enabled litigants to gain access to documents and to seek remedies against the Government, which brought the English law to mirror the rights granted under Scottish law on this point. The presumption has never existed in Scotland that the powers and prerogatives of the Crown as recognised in English law, are incorporated automatically or retain an enabling provision, for application in an independent Scotland.
The framework of the Treaty of Union 1707 states that the Westminster Parliament has the ability to enact the public laws of the UK but does not have the remit to legislate in reserved areas not derogated under the Sewel Convention. This will be defined by the process of how devolution is interpreted and the future course of the Scottish referendum that may now be accelerated post -Brexit. There is a close parallel that exists with the Act of Union 1707 and the Treaty of Accession to the EC and the European Communities Act 1972. The pre-1707 UK Scots monarch enjoyed the prerogative and the Articles of Union were framed under his powers.
In MacCormick v Lord Advocate the Court of Session dealt with the question of whether the provisions in Article XIX of the Treaty of Union which purport to preserve the Court as the highest civil court and the laws relating to right administered in Scotland are fundamental laws which Parliament is free to alter. Lord President Cooper held
“The principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law. Considering that the Union legislation extinguished the Parliaments of Scotland and England and replaced them by a new Parliament, I have difficulty in seeing why it should have been supposed that the new Parliament of Great Britain must inherit all the peculiar characteristics of the English Parliament but none of the Scottish Parliament.”
The Parliament in Westminster did have sovereignty and the right to annul legislation by the powers vested in it by the treaty. His Lordship also stated that from the perspective of “constitutional law and of international law the position appears to be unique, and I am constrained to hold that the action as laid is incompetent in respect that it has not been shown that the Court of Session has authority to entertain the issue sought to be raised.“ Lord Guthrie, was also forthright in his ruling and stated, “no Scottish court had ever held an Act of Parliament to be ultra vires and that it had never been suggested that it could do so.”
The reasoning of the Court was followed in Gibson v Lord Advocate where the owner of a Scottish fishing vessel sought to argue that the European Communities Act 1972 was invalid because the opening up of Scottish waters to vessels from the other Member States would cause economic hardship to Scottish fishermen, thereby interfering with their traditional fishing rights in a manner which was not for the evident utility of the Scottish people. Lord Keith in the Outer House of the Court of Session refused to accept the claim on the grounds that fishing rights were matters of public right (which could be freely altered by the UK Parliament) rather than private rights.
His Lordship also stated that:
“The question whether a particular Act of the United Kingdom Parliament altering a particular aspect of Scots private law is or is not “for the evident utility” of the subjects within Scotland is not a justiciable issue in this Court. The making of decisions upon what must essentially be a political matter is no part of the function of the Court, and it is highly undesirable that it should be.”
The framework of the Sewel Convention institutionalises devolution and it establishes that the Westminster Parliament has the ability to enact the public laws of the UK, but does not have the remit to legislate in reserved areas not derogated under the Scotland Act 1998. There is a close parallel that exists with the Act of Union 1707 and the accession to the EC under the European Communities Act 1972. The process of enacting Brexit was an instance in which the Scottish courts have had to consider their powers in invalidating the use of public powers to override the process of legislation in Parliament.
In R (Miller) v Secretary of State for Exiting the European Union, the main argument of the applicant was that the UK Government could not give notice of its intention to withdraw from the European Union (EU) in accordance with Article 50 TEU under the prerogative and that statutory approval was required. The government had contended that it could use the prerogative power to revoke treaties without Parliamentary approval which would annul the ECA 1972. The Supreme Court’s ruling was preempted by legislation by the enactment of the European Union (Notification of Withdrawal) Act 2017. Chapter 9, Power to notify withdrawal from the EU states in Section. (1) The Prime Minister may notify, under Article 50(2) of the Treaty on European Union, the UK’s intention to withdraw from the EU and (2)This section has effect despite any provision made by or under the European Communities Act 1972 or any other enactment.
The Scottish government raised questions regarding devolution in the Court, including the Sewel convention, and its implications for the process of leaving the EU. The preliminary issue was whether it was even competent for the courts to consider the application of Scotland Act 1998 Section 28(8), or the underlying legislative consent and for it to be deemed a “justiciable” issue. This is because there is a general rule that constitutional conventions are not legally enforceable in courts. The Lord Advocate, James Wolffe, QC, in his submissions stated that “if the UK Parliament were to choose to pass an Act of Parliament without the consent of the Scottish Parliament, the courts could not decline to recognise the validity of the resulting Act of Parliament.”
This is in accordance with section 28(7) of the Scotland Act, which confirms that the UK Parliament retains the power to make laws for Scotland. The petition was, therefore, not requesting the Supreme Court to declare that any UK legislation authorising Article 50 can only be valid if the Scottish Parliament consents. The implications of this would have been that it would be “politically difficult for the UK Parliament to proceed without asking for consent, or despite a refusal of consent.” The Supreme Court ruled that “(i) although the removal of the EU constraints on competence imposed by Brexit would alter the competence of the devolved institutions unless new legislative constraints were imposed, the UK’s relations with the EU was a reserved matter and the devolved legislatures had no competence in relation to withdrawal from the EU.”
Their Lordships stated further that “(ii) there was no legal requirement to obtain the consent of the devolved legislatures before notification of leaving the EU was given” but declined to make a ruling on what the Sewel convention might require. The Court explained that, although the Sewel convention cannot be enforced by the courts, it nonetheless, plays an important role in facilitating harmonious relationships between the UK Parliament and the devolved legislatures.
The Court affirmed the well-established concept that they cannot enforce political conventions and cited the Canadian Supreme Court case of Re Resolution to Amend the Constitution where the majority judgment of Chief Justice (Laskin) and Dickson, Beetz, Estey, McIntyre, Chouinard, and Lamer JJ stated: “The very nature of a convention, as political inception and as depending on a consistent course of political recognition by those for whose benefit and to whose detriment (if any) the convention developed over a considerable period of time is inconsistent with its legal enforcement.”
While the Court refused to rule on the scope or operation of the convention it did rule on the meaning and effect of Section 28(8) which was incorporated in the Scotland Act 2016 following the recommendation of the Smith Commission which states that Section 27(7) states that “This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland.” However, the new subsection (8) states: ‘But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.’
The Court’s reasoning was that in framing subsection (8) “UK Parliament was not intending to convert the Sewel Convention into a rule which could be interpreted or enforced by the courts; rather, it was: ‘recognising the convention for what it is, namely a political convention, and is effectively declaring that it is a permanent feature of the relevant devolution settlement. What follows from the nature of the content, and is acknowledged by the words (“it is recognised” and “will not normally”) of the relevant subsection; and “We would have expected UK Parliament to have used other words if it were seeking to convert a convention into a legal rule justiciable by the courts.”
The competence of the devolved institutions is that the UK’s relations with the EU was a reserved matter for Westminster and the devolved legislatures had no competence in relation to withdrawal from the EU. The Court further ruled that ” there was no legal requirement to obtain the consent of the devolved legislatures before notification of leaving the EU was given, but declined to make a ruling on what the Sewell convention might require.” This has implications both for the manner in which the courts take account of constitutional conventions in general and the Sewell convention in particular.
“The Sewel Convention has an important role in facilitating harmonious relationships between the UK Parliament and the devolved legislatures. But the policing of its scope and the manner of its operation does not lie within the constitutional remit of the judiciary, which is to protect the rule of law.”
Tom Mullen, a Scottish constitutional law specialist states that in essence the courts should not resolve disputed questions as to what a convention means but they can observe that it exists in the context of deciding a legal question. Mullen contends that “the court’s decision was in effect that statutory recognition that has made no difference to the legal status of the Sewell Convention. Legally, it is no more secure against unilateral variation or breach of its requirements than it was before the amendment and the courts have been told not to attempt to resolve disputes about its meaning, scope, or effect. Section 28(8) is essentially non-justiciable.”
The Westminster Parliament’s powers supersede those delegated to Scottish Governments and not only does the UK Parliament’s power to legislate for Scotland continue to be unfettered but is also independent of legally enforceable procedural restraints. The courts will not offer any opinion on whether the convention has been complied with in specific cases and it remains outside their review but the issue that is debatable is the remit of the law if Scotland opted for independence.
C. Roman Influence on Domestic Jurisprudence
The issue of self-determination for Scotland is based on grounds of potentially a separate constitution. The basis of independence is ingrained in its jurisprudence and in the powers provided by the Sewel Convention to proclaim its future status by a referendum. In view of that commitment Section 63 A(3) has declared that “the Scottish Parliament and the Scottish Government are not to be abolished except on the basis of a decision of the people of Scotland voting in a referendum.”
The process of constitutional unity between England and Scotland was an accident of history. It began in 1603 when James VI, King of Scotland, also became the King of England after the demise of Elizabeth I who had died without a successor. Whilst this united the two countries, with separate crowns in1603, both retained their independent legal systems. There was a unicameral legislature that operated in Scotland based in Edinburgh. This, however, also provided an opportunity for the development of an intellectual history for Scotland which was against the divine right of kings to rule over their subjects. There is a particular Scottish Republican constitutional tradition that can be traced as far back as the Declaration of Arbroath of 1320. This flourished in the political theology of the reformed Scottish Church after 1560 which emphasized the limitations of the secular power before the ecclesiastical institution.
The contemporary philosophical influence began to challenge the traditional rule by a Monarch and replaced that with the sovereignty of the people. George Buchanan, a Renaissance scholar, and tutor to James VI embedded the idea that the ancient Kings of Scotland had been elected and not ordained because of their nobility of birth. The Monarchs were therefore bound by Scottish laws and if they broke their social contract then the people could commit regicide. The Bill of Rights in England of 1689 had restricted the powers of the Monarch by the institution of the King- in- Parliament. Its corresponding legislation in Scotland the Claim of Right Act 1689, inspired by the jurist George Buchanan, is more radical because it states ” the source of all political power is the people and that the monarch is bound by those conditions under which he was entrusted with supreme power.”
The Claim of Right Act consists of four parts the first of which is “a brief but important Preamble” that states James “invaded the fundamental constitution of the Kingdom and altered it from a legal limited monarchy to an arbitrary despotic power […] ” The second part then sets out the complaints against James and concludes that, on those grounds, he has forfeited the right to the Crown so that “the throne is become vacant.” The third part is premised “on those complaints” which declare that a number of executive actions are “contrary to law” and proclaims “the existence of their undoubted right and liberties”. The final part expresses the aspirations of the joint Kingdom as being of potential mutual benefit and as leading “to the conclusion that King James has forfeited the right to the Crown and that the throne is consequently vacant.”
The common acceptance exists for the scope of prerogative power in both the English and Scottish Parliaments as a valid exercise of the Monarch’s own powers. However, there are limits for Scotland because while the English constitutional tradition has been pre-dominant in the UK the “Scots public law has retained its autonomy because some of the provisions of the Act of Union are so fundamental that they remain beyond Westminster Parliament’s power to legislate.”
After the execution of Charles I, the English and Scottish Parliaments branched into separate chambers, and England was declared a republican Commonwealth with Oliver Cromwell as Lord Protector. The Scottish Parliament recognised Charles II as their King, but Cromwell as head of the new republican commonwealth carried out a military campaign against Scotland. In 1651, after the defeat of the Scottish army, the Commonwealth government subsumed Scotland by declaring that the Parliament of England, was supreme.
The province of Scotland was granted the right to send 30 Members of Parliament (MPs) to Westminster and that became a collective commonwealth of England, Scotland, Wales, and Ireland. The monarchy was re-established in 1660 which allowed the Scottish Parliament to be reconstituted and its judicial branch was also restored. This heralded the development of the Scottish legal institutions such as the High Court of Justiciary in 1672, which became the apex court for the criminal jurisdiction in Scotland that remains until today. Its creation separated the civil and criminal branches that had begun in 1532. The land registry was also established and records of land ownership were initiated and the Registration Act 1681 cemented the development of a system of land transactions in Scotland. The early jurists of Scottish private law developed a framework that impacted the ecclesiastical, civil, and common law.
The early jurists of Scottish private law developed a framework that impacted the ecclesiastical, civil, and common law. In the 1660s, Viscount Stair brought together the elements of customary, feudal, and Roman law into one system in his leading work ‘The Institutions of the Law in Scotland (1681)’. John Erskine wrote ‘An Institute of the Law of Scotland (1773)’ and the ‘Principles of the Law of Scotland (1759)’ and Sir George Mackenzie published ‘The Laws and Customs of Scotland in Matters Criminal (1678)’. Professor Willock has published a modern treatise in which he defines Scots law as based on “principle rather than precedent; legal writers and judges both enunciate these principles and English law represents a threat to Scottish law.”
The critical development leading up to the Act of Union with England in 1707 was the creation of the constitutional monarchy after the ‘glorious revolution’ of 1688–1689, which eviscerated the power of the monarch. It was in its aftermath that negotiations began for a united parliament to serve both countries and a joint commission met in April 1706, that led to an agreement on three main issues: 1) an incorporating union, 2) English guarantee of complete free trade, and 3) Scottish agreement to recognise the Electress of Hanover and her heirs as successors to Queen Anne as monarch of Scotland.
The Union with Scotland Act 1706 passed by the Westminster Parliament and Scottish Parliament’s enactment of the Union with England Act 1707 established the structure of the present constitution. These Acts abolished the separate Parliaments and created one single Parliament at Westminster. The distribution of constituencies was apportioned with Scotland gaining 45 seats in the new 558 members British House of Commons with 16 peers in the House of Lords. This Act of Union became operative on 1 May 1707 and it became the first Parliament of Great Britain with a bicameral legislature.
The Act of Union 1707 was an international agreement in which Scotland received recognition as a separate sovereign state and that it institutionalised Scots law. It is this document that purports to show that Scotland is a nation-state and that any sovereignty of the UK parliament could not be overriding over both the national Parliaments. This is based on the assumption that there are two separate streams of jurisprudence that came together on the basis of a joint overarching framework from an Act of Parliament.
The Treaty had made an express distinction between alterable and unalterable rights and decreed under Article XVIII “that the Laws which concern publick Right, Policy, and Civil Government, may be made the same throughout the whole United Kingdom; but that no Alteration be made in Laws which concern private Right, except for evident Utility of the Subjects within Scotland.“
The historical evolution led to the promulgation of the Scotland Act 1998 that reinstated the Scottish Parliament. This Act has enabled the holding of a referendum about Scotland’s independence in accordance with paragraph 5A of Part 1 of Schedule 5. The referendum on Scottish independence conducted on 18 September 2014 resulted in a negative vote for independence based on the proposition: ‘Should Scotland be an independent country?’. This was rejected by a margin of 10.6 percentage points in the turnout at the referendum that was 84.6% including rejected papers of the valid votes cast.
The law of Scotland occupies a unique place amongst the legal systems of the modern world which “fall into one two main categories (a) Anglo -American or common law systems and (b) the Roman civilian or Franco-German system. The Scottish law is perched on the fence as it is Roman in origin, doctrine, and method, but now largely diluted and overwhelmed by later developments of Anglo American law and statutory changes enacted by a Westminster Parliament in English. It has been stated that Scotland has never been successfully conquered except by Christianity and Roman law; but in their later days Scots law similar to the law of Quebec and Louisiana and the Roman Dutch system of South Africa has tended to become a hybrid system.”
The distinction between substance and procedural law is central to the conflict of law methodology and, it is also generally accepted that this is the task of the courts to adjudicate. In English law, the forum court considers the matters of the procedure before deciding if the subject matter comes under the jurisdiction before commencing the due process. The Scottish law preserves this lex fori rule in the forum non-conveniens and this process maintains the structure of private international law-based claims that lead to the Supreme Court.
Professor N Walker draws a comparative analysis between the Scottish lex fori jurisdiction in order to determine how that Scottish law compares to the organisation of the legal and judicial appellate system of the federal systems such as Germany. This theory is based on two key “axes of variation” within the organisation of a system of courts and of appellate mechanisms that are relevant to the understanding of the lex fori and lex causae principles. These justify the ” hard jurisdictional autonomy is reinforced by and to some extent relates symbiotically to the system autonomy which Scotland enjoys; although, the jurisdictional autonomy is stronger than the system autonomy, in the sense that the Scottish courts comprehend both central and regional sources of authorisation within the constitutional arrangements of the Union state.”
The court will consider interpretations of the legislation from across the jurisdiction to apply forum non-conveniens according to its discretionary approach. However, beyond this uniform interpretation approach to statutes, the courts will be inspired by judgments on ” other questions of overlapping law and policy even where the statutory backgrounds are not identical or the matter is governed by the common law.” This general approach is affirmed at the highest level by the fact that all the judges of the Supreme Court, regardless of the jurisdiction in which they were originally trained, are able to deal with cases that involve appeals from English and Scottish courts.
The Withdrawal from Europe Act 2020 that triggered Brexit on 31 December 2020 has meant that Scotland has terminated its membership of the EU on the same date as the rest of the UK. The majority of Scottish people voted to stay in the EU and this could have repercussions after a second referendum for Scottish independence that will allow the citizens to decide if they want to stay in the UK or depart which may result in Scotland becoming a nation-state.
D. Application of EU laws Post-Brexit
In Scotland, there is the post-Nuremberg recognition that a higher normative authority reserves the principles derived from international humanitarian and human rights law, even as against the requirements of national law. The domestic law specifically incorporates the 1950 European Convention on Human Rights by the terms of Article 7 ECHR. The Convention refers, in Article 7(2) ECHR, to the possible trial and punishment of any person for any act or omission which, at the time it was committed “was criminal according to the general principles of law recognised by civilised nations”. It can be argued that when including Article 7 ECHR as one of the “Convention rights” for the purposes of the Human Rights Act 1998 (and devolutionary statutes such as the Scotland Act 1998 the UK Parliament, arguably, also effectively incorporated human rights principles derived from Nuremberg regarding the justifiability of conduct under national and international law directly into domestic law. However, this was challenged “because automatic incorporation oversimplifies crucial conceptual distinctions.”
While English law has not incorporated customary international law in its framework without Parliamentary sanction the potential for direct reliance upon international treaty law before the courts in Scotland has been increased by the provisions of the Scotland Act 1998 (notably Sections 35, 58, 106(6) SA). This makes it plain that the acts of the Scottish Parliament and of the Scottish Government may be subject (specifically at the instance of the Secretary of State) to legal challenge before the courts insofar as these acts are thought to be incompatible with the UK’s “international obligations”. Section 108(1) defines this provision as meaning “any international obligation of the United Kingdom, other than obligations to observe and implement Community law or the Convention rights”). The obligations on the part of the devolved Scottish institutions to respect Community law and Convention rights are the subject of other more specific provisions within the Scotland Act.
The Scotland Act 1998 has two important clauses that conform to the EU laws as a superior in the hierarchy of laws that apply in the framework of its constitutional laws.
Schedule 5 reads: “7(1) International relations, including relations with territories outside the United Kingdom, the European Union] (and their institutions) and other international organisations, regulation of international trade, and international development assistance and co-operation are reserved matters. (2) Sub-paragraph (1) does not reserve—(a) observing and implementing international obligations, obligations under the Human Rights Convention and obligations under EU law”.
However, the Westminster Parliament aims to formulate the terms and conditions for an ‘internal market’ in the UK as the substitute for the EU. The Inland Markets Bill (IMB) 2020 creates the provisions for an ‘internal market’ that integrate the four countries forming the UK into an internal commercial market. It is part of a harmonisation process designed to govern “how goods and services will be regulated” when the UK leaves the EU’s Common Market after Brexit and has the objective to achieve compatibility “in rules and regulations to allow free trade and the movement of workers.”
However, it has drawn criticism by its encroachment in the three main areas of the regulatory framework for goods and services across the UK; State aid implemented by allowing UK ministers to make direct investment across the UK who may also decide on matters of “distortive or harmful subsidies”; and giving UK ministers the power to make changes to areas set out in the Northern Ireland protocol, that was included in the previously agreed UK Withdrawal Agreement.
The possibility exists that the IMB may through the independent trade agreements that the UK Government will negotiate with nations for access to the UK market lead to an uneven distribution of products, foods, and services. There is a consensus that ” there needs to be common framework” across the UK and “around 60 percent of Scotland’s trade is with the rest of the UK” but the Scottish Government is concerned about the “mutual recognition and non-discrimination”. This is ingrained in the availability of “technical terms is that UK ministers will have the power to enforce regulatory alignment on all sorts of matters across the UK without the need to consult devolved parliaments.”
The Bill’s effect upon the Holroyd Parliament would be to derogate to the Westminster Parliament legislation over the non-reserved powers and the Scottish ministers have accused the UK government of overriding its legislative powers. The Scottish government’s objections are also based on the fact that the IMB will not allow health and environmental safety checks on products imported into the UK. This may lead to the enforced acceptance of these goods by Scotland and also the devolved government’s policies could “be challenged in court by private companies if they appear anti-competitive.”
Charles Livingstone has identified that the areas of difficulty the “Scottish Government believes that restraints in those areas should be agreed between the different governments using common frameworks on a voluntary basis, whereas the UK Government considers that a legal fallback is necessary. What is unclear, however, is whether and how the bill would affect future UK Parliament legislation that was contrary to the market access principles.“
The second area of concern “is the arises from the limited exceptions to the market access principles. Article 34 TFEU is limited by article 36, which allows for free movement to be restricted by reference to human, animal or plant health; public policy or public security; public morality the protection of national treasures with artistic, historic or archaeological value; or the protection of industrial and commercial property.“
There has been the intimation of the “legislative consent motion (LCM) which is a mechanism that grants permission for the UK Government to legislate in a devolved area”, but it is not legally binding. It has no legal implications as was evidenced in the enactment by the Westminster Parliament of the Brexit Withdrawal Agreement when the three devolved parliaments voted against its passage.
The Bill has been augmented by the European Commission initiating legal proceedings against the UK Government because it is a violation of Article 4 that states that the Withdrawal Agreement as a treaty in international law takes “legal precedence over UK domestic law”. Article 5 of the Brexit withdrawal agreement. This states ” the European Union and the United Kingdom must take all appropriate measures to ensure the fulfilment of the obligations arising from the Withdrawal Agreement, and that they must refrain from any measures which could jeopardise the attainment of those objectives. Both parties are bound by the obligation to cooperate in good faith in carrying out the tasks stemming from the Withdrawal Agreement.“
The IMB impinges on the Northern Ireland protocol which was to avoid the return of a “hard” land border between Northern Ireland, in the UK, and the Republic of Ireland, in the EU. It sets up the verification process for transporting goods shipped between Northern Ireland and Great Britain in order to keep Northern Ireland in the EU single market for goods, unlike the rest of the UK. The protocol states companies moving goods from Northern Ireland to Great Britain (England, Scotland, and Wales) would have to fill out export declaration forms and the Bill would give ministers the power to the interpretation of the meaning of the Bill’s provisions.
The Scottish government has moved the UK Withdrawal from the European Union (Continuity) (Scotland) Bill 2021 in order to sustain the Scottish law’s alignment with EU law. Its preamble states that it “will help Scottish law keep up with future developments in EU law after 31 December”. This will apply to areas that will be affected by the IMB “such as the environment, agriculture, and fisheries.” The Continuity Bill has “three main objectives which are to preserve devolved laws similar to EU laws; ensures Scottish Ministers and public bodies pay attention to environmental principles when they make policies; and sets up a new organisation to replace the oversight of environmental law provided by the EU.“
The Continuity Bill provides the Scottish Ministers two main powers which are “in keeping with the Scottish Government’s goal of maintaining alignment with EU law as far as possible, it brings back the so-called ‘keeping pace’ power contained in the first Continuity Bill. Section 1(1)(a) confers on the Scottish Ministers power to make regulations for the purposes of: (i) aligning the law in devolved areas with the provisions of EU regulations, decisions or other tertiary legislation; (ii) implementing an EU directive; or (iii) enforcing any such EU legislation“. The second main object in the bill “reflects a particular concern about the effect of Brexit on the maintenance of environmental standards in Scotland, it makes provision for environmental governance“. The guidelines are “set out in s 9, subject to a power of amendment by the Scottish Ministers to ensure that the principles keep pace with any relevant developments in EU law.”
The inherent logic of this Bill is to align with the EU “on the assumption that Scotland’s relationship with Europe has not been closed with Brexit” and it has been argued that it “might want to keep European rules so as to meet the conditions for it easily to rejoin the EU after a successful independence referendum.” It is observable that “since Scotland’s trade with the rest of the UK is three times that of its trade with the EU, pro-independence economic arguments around trade and borders would need to focus, much more clearly than now, on transitional scenarios to a restructured Scottish economy – one benefitting from EU free movement, and from more foreign direct investment, and changing its pattern of trade over time”. This may the motivation for a fast-track procedure for endorsing the EU regulations into its legal framework when they have been promulgated by Brussels for adoption.
The Scottish Parliament does presently have the power to adopt European regulations in devolved matters and this Bill if enacted will proceed in the direction for eventual reintegration into Europe if a referendum is helpful and the vote is to become independent. The UK and devolved governments are currently in the process of negotiating over ‘common frameworks’ governing powers reverting from Europe. The IMB that the Westminster Parliament has moved is to integrate and to pre-empt any independence vote by Scotland by locking the Scottish economy once more under the English Crown. The adoption of Scotland of this enactment will mean in practice that they will not have the legislative space to reject them where they are in conflict with the relevant EU regulations. The Continuity Bill is the bedrock for Scotland to maintain the connection with the EU law which will assist when it reapplies for membership of the EU after a positive referendum vote.
E. Scotland’s Referendum and Catalonia’s UDI
The nations in Europe that have been awarded devolution in the form of assemblies with powers of legislation in non-reserved areas acknowledge their historical foundations. The issue is if Scotland can achieve independence based on its homogenous population and its territory that can exist as a separate unit. The issue for minority groups in the “pursuit of territorial self-governance usually becomes a question of state legitimacy” and their perspective is that it is “as an instrument by which they can counter the inherent structural asymmetry of the unitary nation-state that inevitably provides national majorities control over the institutions of government and cultural reproduction throughout the territory of the state.”
It is asserted on this basis that there is a national right of countries to secede once the referendum gives them the affirmative vote from their electorates. The Scottish Parliament implements international law and EU norms while the UK government is responsible for conducting international relations. If the laws promulgated by Westminster Parliament are incompatible with EU law or the ECHR, then the provisions of the Scotland Act will automatically invalidate them and they would be beyond challenge in the Courts. The issue is the legal status that Scotland will attain in a post-referendum scenario with regards to the EU if it votes for independence and an analogy has to draw with Catalonia, a region in northwestern Spain, that had unilaterally declared its independence. Catalonia is a linguistically separate nation that has had varying degrees of autonomy through its union with Spain.
In 1932 the Statute of Autonomy was the platform of its prospective independence and transitionally declared itself a state within Spain in 1934. Similar to Scotland in the 1990s, Catalonia developed increasing self-governing institutions, and its autonomy devolved into the Generalitat de Catalunya as the instrument of self-government. However, Article 1 of the 2005 draft Statute of Autonomy entitled “the Catalan nation” was amended so as to make it clear that there was no agreement on Catalonia’s status as a nation, and the reminder that “[t]he Spanish Constitution, in its second Article, recognises the national reality of Catalonia as a nationality” (and therefore not as a nation) was also added.
Daniel Cetra argues that there are similarities between the Catalan and the Scottish case because approximately “45 % of the population in these regions supported independence” and “since 2012 and was 80 percent) supported a referendum”. However, the referendum law was “suspended by the Constitutional Court” and the “members of the Catalan Government were accused of perverting the course of justice, disobedience, and misuse of public funds”. This raised a “debate between legal and democratic legitimacy” and unlike the argument for “British unionism, the appeal to unionism in Spain has become a predominantly legal argument rather than an appeal to the economic and social benefits of the status quo.”
The parliament of Catalonia unilaterally declared independence from Spain on 27 October 2017 infringing the 1978 Spanish Constitution that has two main stipulations, firstly, that “the constitution is based on the indissoluble unity of the Spanish nation” (Article 2) and, secondly, the “political decisions of special importance may be submitted to all citizens in a consultative referendum” but the “referendum shall be called by the king on the president of the government’s proposal after previous authorisation by the congress”(Article 92). The consequence of Catalonia declaring that it was now the “Catalan republic” was that it was abrogated by Spain and it was placed under the direct control of the Madrid government according to Article 155 of the constitution.
The Spanish territorial integrity as an indivisible state has been confirmed by the ruling in 2013 of the Spanish Constitutional Court in BOE no 87. This invalidated a challenge based on the autonomous provisions 1389-2013 of the Spanish constitution that facilitated a resolution of the Parliament of Catalonia to declare independence. The Court ruling stated:
“1. The so-called first principle entitled «Sovereignty» of the Declaration approved by Resolution 5 / X of the Parliament of Catalonia is declared unconstitutional and void.”
This provision applies to the sovereign territory that is the Kingdom of Spain and Catalonia is part of the sovereign territory. The EU law would not be applicable if Catalonia had seceded from its union with Spain. Article 52 of the TEU states “The territorial scope of the (EU)Treaties is specified in Article 355 of the Treaty on the Functioning of the European” Union”. This would have meant that if Catalonia were to depart from this territory, it would no longer be an integral part of the EU Member state that is Spain but EU law would longer apply to Catalonia. Article 52 “combines two issues that are separate per se—i.e. secession from Spain on the one hand and exiting the EU on the other. The Catalan government, even if it achieved independence will continue to be part of the EU because of its existing mandate of EU membership. If these two (separate) issues are connected in this manner seems highly questionable.“
The secession from Spain, had it been achieved, would have led to Catalonia automatically departing the EU. This would have triggered Article 52 of the Treaty of European Union (TEU) into the process that embodies the fundamental principle of international law that seceded states rather than enjoying ‘original’ territorial sovereignty on becoming international entities merely achieve so-called ‘derivative’ territorial sovereignty transferred to them by their parent Member states.
If a referendum results in Scotland leads to severance in its ties with the UK then its relationship with the EU will be premised on being a non-member state and there will be a new application for membership as a sovereign country. However, the UK will no longer be a Member State and Scotland’s application for membership will differ from the one that applies, hypothetically, to the Catalan case where the original state Spain is a Member State and Catalonia is integral to the parent state. Under Article 52 if it had succeeded in gaining independence from Spain then it will be another member state of the EU.
If Scotland were to declare independence after a referendum international law will regulate “the relations and interactions with other European states in the period before Scotland acquires EU membership”. It will have to make an application to become a member state of the Council of Europe (CoE) but in this duration, it will still be bound to the European Convention on Human Rights (ECHR) by the adoption of the Human Rights Act 1998 into the UK legal system that also applies in Scotland. This will draw from the “provision of the Scotland Act with regard to the Convention reinforces the incorporation of it into a theoretical framework for a post-referendum scenario. In the hypothetical scenario of independence, the ECHR may continue to apply it without interruptions following a declaration of independence and even before Scotland may become party to the CoE.”
The Scottish application for membership of the EU would not be a genuine “reversion” as the UK will not be then a member state of the EU. This application by an independent Scotland will be as a new member because it was a party to the Brexit which the UK as the parent state has already enacted by withdrawal from Europe. The important consideration is that Scotland has endorsed the norms of European legislation that are part of the framework such as the European Convention of Human Rights. This adoption will facilitate the integration into the EU institutions after a positive vote in the second referendum.
The Scottish Parliament under devolutionary powers granted by the Sewel Convention has the authority to make primary legislation in the public policy domain where it has ‘legislative competence’ but not in areas that are ‘reserved’. This power reflects the distinctive Scottish legal, administrative, and social systems, which, prior to devolution, were legislated by Westminster through legislation applying either solely or partly to Scotland. They are the non-reserved powers where the Scottish legislators can enact their own law and where it may not derogate these powers to the UK government.
The Scottish electorate voted against Brexit and, historically, Scotland has maintained its separate legal institutions and jurisprudence and process of unification began as a rebellion against an overbearing monarchy that culminated in the Glorious Revolution in 1688, and the Act of Union in 1707 which did not abolish the two separate legal frameworks. It has a framework of law that has adopted the civil law and Roman law tradition. Under the Treaty of Union, the Scottish national personality never ceased to exist and its formal legal identity remained intact during the period from 1707 until the present.
The Scottish legislature still has European laws that have been adopted as part of the constitutional law of the EU when the UK was a member. The Treaty of the European Union is no longer effective to govern the legal norms to conduct trade with Europe no longer exists that was part of the harmonisation process. The ability to trade with the EU is facing a potential threat to these powers by the Internal Market Bill which intends to create a mechanism for the flow of goods inside the UK which were previously governed by the EU. The future course of the referendum will be instrumental in determining its transition from devolution to full sovereignty and will be accepted through the electorate exercising unlike the unilateral declaration of Catalan independence. The independent state of Scotland will need to apply again for the EU membership as the UK parent state opted to leave the EU of its own free will.
*LLB (Lon), LLM (Lon) Gray’s Inn. The author is an expert in Scottish law and his articles have appeared in the Journal of the Law Society of Scotland, Scottish Law Times, and in the Scottish Law Gazette.
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 The Edinburgh Parliament does have the power to levy local taxes and vary income tax Scotland Act 1998, s.25 (as amended by the Scotland Act 2012, s.80).
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 In the 1660s, Viscount Stair brought together the elements of customary, feudal and Roman law into one system in his leading work The Institutions of the Law in Scotland (1681). John Erskine wrote An Institute of the Law of Scotland (1773) and his Principles of the Law of Scotland (1759) and Sir George Mackenzie, The Laws and Customs of Scotland in Matters Criminal (1678) See also Encyclopedia of the Reformed Faith, ed. D.K. McKim (Louisville, Kentucky and Edinburgh, 1992).
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 In English law the principles were set out by Lord Goff in Spiliada Maritime Corp v Cansulex Ltd  AC 460, it was submitted the application of the plea of forum non-conveniens requires a tripartite approach: (1) the party advancing the plea requires to demonstrate that there is another available forum of competent jurisdiction; (2) if established the party taking the plea requires to discharge the evidential burden, that the forum is a clearly or distinctly more appropriate forum in which the case may be tried more suitably for the interests of justice, interests of the parties and the ends of justice; and (3) if those two thresholds are passed where there are no other circumstances by reason of which justice requires that a stay should nevertheless not be granted. Para 476.
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 An instance of this is the “Flemish nationalism that emerged in the 19th century, despite comprising approximately 60% of the Belgian population, the Flemish people and language were excluded from public administration, the military, politics, law, education and the media. However, in practical terms, Flemish fortunes shifted significantly after the Second World War. The Flemish economy now outperforms Wallonia’s following the decline of the Walloon coal and ‘heavy’ industries. The Belgian state has decentralized, with significant powers devolved to the Flemish and Walloon governments”. Judith Sijsterman, The Populism and Sub-State Nationalism Nexus in Flanders, 28 October 2020, Centre on Constitutional Change, <https://www.centreonconstitutionalchange.ac.uk/news-and-opinion/populism-and-sub-state-nationalism-nexus-flanders> accessed 10 December 2021. See also Patten, A., ‘The humanist roots of linguistic nationalism’, History of Political Thought (2006) pp. 223 – 262.
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